Gray v Barr

JurisdictionEngland & Wales
Judgment Date30 March 1971
Judgment citation (vLex)[1971] EWCA Civ J0330-3
Date30 March 1971
CourtCourt of Appeal (Civil Division)
George William Gray and Audrey Muriel Gray (Widow) (Suing as Administrators of the Estate of James Ian Gray, Deceased)
George William Barr
The Prudential Assurance Company Limited
Third Party

[1971] EWCA Civ J0330-3


The Master of the Rolls (Lord Denning)

Lord Justice Salmon and

Lord Justice Phillimore

In The Supreme Court of Judicature

Court of Appeal

Appeals by Plaintiffs and Defendants from judgment of Mr. Justice Geoffrey Lane on 8th May, 1970.

Mr. MURRAY STUART-SMITH, Q.C., and Mr. DAVID SULLIVAN (instructed by Messrs. Kenneth Brown Baker Baker) appeared on behalf of the plaintiffs.

Mr. RAYMOND KIDWELL, Q.C., and Mr. BRYAN ANNS (instructed by Messrs, Kingsley Napley & Co.) appeared on behalf of the defendant.

Mr. E. MACHIN and Mr. R. COX (instructed by Mr. C. A. Rutland) appeared on behalf of the Third Party.


Mr. and Mrs. Barr have a prosperous business at Tooting in ladies' blouses, which they run together. In 1965 they bought a country home at Warlingham. About a quarter of a mile away there was a farmer and his wife, Mr. and Mrs. James Gray, of Farleigh Court Farm. The Barrs had three boys. The Grays had a boy and a girl. On Guy Fawkes day the Barrs had a bonfire party for the children and the Grays brought their children to it. The families became friends. But the results were disastrous. Mr. Gray and Mrs. Barr fell in love with one another. By May 1966, Mr. Gray had become so infatuated with Mrs. Barr that he wanted to make his life with her. He left the farm and his wife and children - all without a word - and went out to New Zealand He gave Mrs. Barr £240 to buy her ticket out to join him. But, before she went out there, Mr. Gray's father told him that he must come back for the sake of the farm. So in October 1966, he returned to England and ran the farm. But he still kept seeing Mrs. Barr. So much so that Mrs. Gray could not stand it any longer. She separated from him. He bought her a house at Edenbridge, 15 miles away. She had the children there with her. Mr. Gray entered into a deed of maintenance providing for her and the children. He stayed on alone in the farmhouse, running the farm, but no doubt still seeing Mrs. Barr. In May 1967, he took Mrs. Barr to Scotland for a week's holiday. When they came back Mrs. Barr went to her mother's for three days and then returned home to her husband. At first she told him that she wanted to stay with him, but also that she still loved Mr. Gray. But on Tuesday evening Mr. and Mrs. Barr went out to dinner at the Country Club and then she told him to his great delight that she did not love Mr. Gray anymore and was coming back to live withhim, Mr. Barr. They went back to their home hand in hand.


Now comes a tragic sequence of events. Mr. Barr went into the kitchen of his house to make up the boiler, and afterwards to the lavatory. His wife, he thought, had gone upstairs. But when he went up to join her, she was gone. He looked everywhere for her, but could not find her. He thought that she must have gone back to Mr. Gray. He got out the car and drove first towards her mother's and then back to Mr. Gray's farm. He drove in the gates, but turned round and went back again to his own house He asked his cousin who was there: "Have you found Ethel?" She said, "No". Mr. Barr by this time was in a terrible state. He was crying and praying at the same time. He thought that his wife must have gone to Mr. Gray at the farm. He went to the dining-room and picked up his shot-gun. (He had bought it from Mr. Gray six months earlier). His cousin said to him: "You don't need that, Bill". He said nothing. He took up a handful of cartridges and loaded two of them. He asked his cousin to come with him. She would not. He went out with the loaded gun. He drove up to the farm. He got out of the car, leaving the engine running. He opened the front door. There at the head of the stairs he saw Mr. Gray. Mr. Gray said: "Come in, Bill". He called out: "Is Ethel here, Jim?" Mr. Gray said: "No, she is not". Mr. Barr said: "I want to see for myself". He went up the stairs, holding the gun at the port. He was determined to see into the bedroom. But Mr. Gray stood in the way. He said: "Put that bloody thing down and get out". Exactly what happened next is not clear. Two shots went off. The first went up through the ceiling. The second killed Mr. Gray.


It was all a mistake. Mrs. Barr was not in the bedroom Shewas not even in the farmhouse. She was lying in the woods 100 yards from her home, unconscious, having taken an over dose of sleeping tablets. She had attempted to commit suicide. She was found early next morning, taken to hospital, and recovered in three weeks. She and her husband are now together again, with their family and their business.


Three months later - on 21st and 22nd September, 1967 - Mr. Barr was tried at the Central Criminal Court for the murder of Mr. Gray. His defence was that the fatal shot was an accident. The Judge directed the jury that if they thought that it might have been an accident, they should acquit him. They did so. They found him "Not Guilty of Murder". Also "Not Guilty of Manslaughter". He was, thereupon, discharged.


Now Mrs. Gray, the widow of Mr. Gray, has brought this action against Mr. Barr under the Fatal Accidents Acts. She claims that Mr. Barr wrongfully killed her husband and is liable to pay her and her children the pecuniary loss they have suffered by his death. Mr. Barr admits that he is liable to compensate her, but he says that she is entitled to be indemnified by the Prudential Assurance Co. Limited. Mrs. Barr had taken out a "Hearth and Home Policy" under which the company agreed to indemnify the insured and any member of her household against all sums which such person "shall become legally liable to pay as damages in respect of bodily injury to any person….….caused by accidents".


On this claim against the Prudential two points arise:


(1) Was the death of Mr. Gray "caused by accident";


(2) Is the claim of Mrs. Gray barred by public policy?


The Judge has held that Mr. Gray's death was caused by accident, but that the claim is barred by public policy.




Although the jury in the criminal trial found Mr. Barr not guilty, (presumably because they thought it might have been an accident) nevertheless it is, I think, open to the insurance company to go behind that verdict and prove that the shooting of Mr. Gray was not an accident, but a deliberate act on the part of Mr. Barr. This is what the insurance company proved: The first shot (which went up through the ceiling) was deliberate. It was shot, said Mr. Barr, with the object of frightening Mr. Gray. The second shot was, however, not deliberate, and this is accepted by the insurance company. After the first shot, the men grappled in a struggle, Mr. Barr fell backwards down the stairs and in his fall the gun went off. The Judge's finding was as follows:

"The strong probability is that, after the defendant had intentionally fired the first shot into the ceiling, Gray, to protect himself as he no doubt thought from death, grappled with the defendant; the defendant fell down the stairs, scraping the muzzle of the gun against the woodwork and the stucco, breaking the stock of the gun as he fell, and involuntarily firing the second barrel at the same time".


But the Judge went on to say:

"Carrying a loaded shotgun into the house in his distracted and emotional state, and approaching Gray with it as he did, was obviously courting the very type of disaster which in fact occurred".


Was this bodily injury caused by accident? That is the question.


The facts of this case are so unusual that there is very little guidance to be got from the authorities. The word "accidents" in this policy clearly includes injury which is caused by the negligence or fault of Mrs. Barr or her husband or some member of her household: for it is only for such accidentsthat there is any "legal" liability. It is to cover "legal" liabilities that the insurance is given. But the word "accidents" does not include injury which is caused deliberately or intentionally. If a man shoots another in self-defence, or under gross provocation, the death is not caused by accident. It is caused by a deliberate act, no matter how justifiable or excusable it may be. But, if a mm shoots another whilst out shooting pheasants, without intention, being grossly negligent, the death is caused by accident, even though it be manslaughter.


In the present case we have two acts to consider. The one deliberate. The other accidental. (1) There was first this deliberate act by Mr. Barr. He went into the farmhouse with a loaded shotgun, intending to frighten Mr. Gray by firing it. That was no accident. He went upstairs with the loaded gun. He fired the first shot through the ceiling. That was no accident. (2) Then there was this second act: The two men grappled together, and, in the course of it, Mr. Barr fell. The gun went off and killed Mr. Gray. That was an accident in this sense, that it was not deliberate.


But which of these acts was the cause of the death? Was it the deliberate act of Mr. Barr approaching Mr. Gray with a loaded gun? Or was it the fall and subsequent discharge of the gun? The immediate cause was the second act when the gun was accidentally discharged: but the dominant cause was the first act when Mr. Barr went up the stairs with a loaded gun determined to see into the bedroom. Which of these causes is the relevant cause for the purpose of the policy? The Judge. held that it was the second act. He said:

"Was the injury, the shot in the chest, accidentalin the sense of not intended? The answer on the facts proved is, in my judgment, yes, however deliberate the actions which led up to it may have been. It was...

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